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Santa Maria firm sued over role in listeria outbreak

By   /   Friday, November 2nd, 2012  /   Comments Off

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A Santa Maria company’s subcontractor was the last firm to sign off on the food-safety practices at a farm that produced listeria-laced cantaloupe that led to dozens of deaths throughout the country, several lawsuits allege.

PrimusLabs is a third-party food auditor that’s hired by growers to inspect whether their facilities, equipment and practices meet industry safety standards. The privately held company, a division of Primus Group, is named as a secondary defendant in at least four lawsuits related to deaths and illnesses resulting from a listeria outbreak in September 2011.

Primus has filed a motion to dismiss the charges.

One of the lawsuits alleges that a subcontractor for Primus gave a high safety rating to Jensen Farms, the Colorado cantaloupe grower where the listeria originated and the primary defendant in the suit. The stamp of approval was issued weeks before the state’s public health department started investigating the grower’s fruit supply, according to the lawsuit.

Primus did not respond to numerous requests for comment for this story.

Industry insiders say Primus has been named as a defendant largely as a backstop in case Jensen Farms is unable to pay out. That scenario has become more likely since May, when the grower filed for bankruptcy.

“The audit done by James DiLorio [an employee of Texas-based Bio Food Safety, Primus’ subcontractor] on July 25, 2011 … was not done with reasonable care, and constituted a breach of Bio Food Safety’s duty of reasonable care owed to the consumers of Jensen Farms/Frontera cantaloupes,” the complaint for personal injury, wrongful death and loss of consortium reads. It goes on to allege that the auditor’s negligence “posed an unreasonable risk of harm to consumers of the facility’s cantaloupes because the equipment and facility design and maintenance encouraged bacterial growth and proliferation, and ultimately contamination of cantaloupes.”

In Primus’ motion to dismiss one of the lawsuits, the company argued that it is outside the scope of a food auditor’s job to prevent contaminated fruit from being sold in grocery stores and ultimately eaten by consumers. Primus’ motion says the plaintiff “is and and will be unable to ever establish that Primus owed the decedent a duty in conducting its audit. Moreover, plaintiff has failed to establish a breach of any such duty (even if it existed).”

Jim Prevor, a produce industry expert and author of the “Perishable Pundit” newsletter, said there’s a lot of misinterpretation about a food auditor’s role in the produce supply chain. He said an auditor such as Primus is not responsible for certifying food safety, but with inspecting growers’ facilities and determining whether they follow industry standards such as “good agricultural practice” or “good environmental practice.”

[Disclosure: PrimusLabs is an advertiser on Prevor’s website, www.perishablepundit.com.]

“A lot of people would like auditors to do something they don’t really do. They don’t decide on their own what would be a good practice to engage in; they just inspect facilities and make check marks on a list,” Prevor told the Business Times. “Primus is one of the top companies, and they have rigorous standards and rigorous management. But they’re not attempting to do what people might like them to do, which is to give a passing grade or a failing grade, and if it’s a passing grade, you’re safe.”

A complaint filed in a New Mexico state court in March alleges that the plaintiff’s husband, Rene Gaxiola, died as a result of eating cantaloupe from Jensen Farms that was contaminated with listeria, a bacteria found in soil or water that can cause mild gastrointestinal symptoms, and in severe cases can cause meningitis or brain infection. According to the Centers for Disease Control and Prevention, 146 people were infected and 30 people died from the outbreak that gave rise to the suits against Primus. The complaint alleges the listeria contamination was likely caused by the way the grower washed its cantaloupes.

Gaxiola’s widow was the 10th plaintiff to hire Marler Clark, a Seattle-based law firm that specializes in food-borne illnesses, to file suit against the cantaloupe grower and the fourth to name Primus as an additional defendant. “This outbreak has shined a bright spotlight on third-party food safety auditors,” William Marler, a partner who focuses on listeria, said in a statement about the Gaxiola suit.

“For some time, those of us with knowledge of the food industry have questioned their validity. Perhaps now, with 30 dead, it is time to reexamine their role in food safety.”

After the Colorado Department of Public Health and the Environment found that the likely source of the listeria outbreak was cantaloupe, the U.S. Food and Drug Administration investigated and found the contaminant in samples of Jensen Farms’ cantaloupe. The agency recalled the fruit still on grocery shelves.

The Gaxiola complaint alleges that it was the intent of Primus and its subcontractor to ensure that the facilities, premises and procedures used by the grower “met or exceeded applicable standards of care related to the production of cantaloupe” and that the resulting food “would be of high quality for consumers, and would not be contaminated with harmful pathogens, like listeria.”
Prevor, the food pundit, said the problem isn’t necessarily with third-party auditors, but with the way the food industry is regulated.

Because the FDA doesn’t want to be responsible for outbreaks of foodborne illnesses or for putting farmers out of business, the agency only provides vague guidelines for food safety, he said. The business of third-party auditing was born out of a “combination of growers who wanted to check themselves and buyers who wanted to check safety but weren’t capable of having their own staff members go and inspect everything,” Prevor said.

Since the Gaxiola suit was filed, Jensen Farms has filed for Chapter 11 bankruptcy and Bio Food Safety has notified the New Mexico court that it’s considering declaring bankruptcy. Based on the defendants’ financial situations, the court issued an order in August delaying discovery until at least the end of the year.

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